Harrell v. Cain et al

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATIONS - the Court DENIES Harrell's petition for habeas corpus and GRANTS a certificate of appealability.. Signed by Chief Judge Sarah S. Vance on 3/31/14.(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KENTRELL HARRELL

CIVIL ACTION

VERSUS

NO: 11-989

N. BURL CAIN, WARDEN

SECTION: R(4)

ORDER AND REASONS
Before the Court is Kentrell Harrell's pro se petition for
federal habeas corpus relief pursuant to Title 28, United States
Code, Section 2254.1 On September 21, 2012, the Court dismissed
Harrell's petition without prejudice, on the ground that he had
exhausted only one of his five claims in state court.2 Harrell
appealed but then filed a motion to abandon his four unexhausted
claims and proceed only with his exhausted claim.3 In light of
his appeal then pending before the Fifth Circuit, the Court
determined that it had no jurisdiction to grant the motion.4 On
April 22, 2013, the Fifth Circuit remanded, directing the Court
to reopen the proceedings and rule on Harrell's exhausted claim.5
The Magistrate Judge has recommended that the exhausted
claim, which challenges the sufficiency of the evidence at

1

R. Doc. 3.

2

R. Doc. 19.

3

R. Docs. 22, 23.

4

R. Doc. 25.

5

R. Doc. 27.

Harrell's state court trial, be denied and dismissed with
prejudice.6 The Court, having reviewed de novo Harrell's
petition, the record, the applicable law, the Magistrate's Report
and Recommendation ("R&R"), and Harrell's objection to the R&R,
approves the R&R and adopts it as its opinion.
In his objection to the R&R, Harrell reiterates his argument
that the evidence was insufficient to support his second degree
murder conviction.7 The Court has reviewed the trial record and
finds, in accordance with the R&R, that the evidence presented
was sufficient to prove that Harrell shot the victim with the
specific intent to kill her or cause great bodily harm.
Essentially, Harrell urges the Court to weigh the evidence
tending to exculpate him more strongly than the evidence tending
to inculpate him. In reviewing the sufficiency of the evidence,
however, the Court may not "substitute its view of the evidence
for that of the fact-finder; instead, [it] should consider all of
the evidence in the light most favorable to the prosecution."
Weeks v. Scott, 55 F.3d 1059, 1062 (5th Cir. 1995). Viewed in the
light most favorable to the prosecution, the Court concludes that
the evidence was sufficient to support Harrell's conviction.
Harrell raises two specific objections to the Magistrate's

6

R. Doc. 30.

7

R. Doc. 31 at 4.
2

recitation of the facts.8 First, he argues that Arieal Brewer,
one of the state's key witnesses, did not see him standing over
the victim's body and looking around in the seconds after the
shooting. This assertion is not supported by the record. On
direct examination, Brewer testified that she heard the gunshot,
ran outside, saw the victim's body and ran to it, and about ten
seconds later saw Harrell "standing around [the victim's] body
. . . as if he were looking for something."9
Second, Harrell argues that the spent bullet casing found at
the scene was a different brand from, though the same caliber as,
bullets seized from Harrell's mother's home. The evidence
presented at trial bears this out.10 The objection has no merit,
however, because the Magistrate does not state that the spent
casing and the bullets later seized were of the same brand.
Rather, she states that the spent casing matched only the caliber
of the bullets,11 an assertion Harrell implicitly concedes.12 The
Court finds that the evidence presented at trial, including

8

Id. at 2.

9

State Court Record, vol. 4, Trial Transcript at 107-08.

10

See State Court Record, vol. 2, Minutes at 8 (state
introduced evidence and property receipts at trial); State Court
Record, vol. 3 at 306, 312 (evidence and property receipts
indicate that the spent casing was a PMC 9mm round, while the
bullets seized from Harrell's mother's home were UMC 9mm rounds).
11

R. Doc. 30 at 15.

12

R. Doc. 31 at 2.
3

evidence that the spent casing matched the caliber but not the
brand of the bullets seized from Harrell's mother's home, was
sufficient to support Harrell's conviction.
Rule 11(a) of the Rules Governing Section 2254 Proceedings
provides that "[t]he district court must issue or deny a
certificate of appealability when it enters a final order adverse
to the applicant." A court may only issue a certificate of
appealability if the petitioner makes "a substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
The "controlling standard" for a certificate of appealability
requires the petitioner to show "that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented [are] adequate to deserve encouragement to
proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (quotation
marks removed).
The Court concludes that Harrell's petition satisfies this
standard. Specifically, the Court finds that reasonable jurists
could debate whether Harrell's sufficiency of the evidence claim
should be resolved in a different manner. Although there was
testimony at trial placing Harrell beside the victim's body
seconds after she was shot and providing Harrell with a motive
for the shooting, there were no eyewitnesses to the shooting, no

4

witness saw Harrell with a gun, and Harrell's mother's boyfriend
testified that Harrell was inside his mother's house, down the
block from the shooting, at the time the shooting occurred.
Further, in its opinion remanding the case back to this Court,
the Fifth Circuit held that "reasonable jurists would . . .
debate whether Harrell has stated a valid constitutional claim
regarding the sufficiency of the evidence."13 Accordingly, the
Court will issue a certificate of appealability on the question
of the sufficiency of the evidence to support Harrell's
conviction.
For the foregoing reasons, the Court DENIES Harrell's
petition for habeas corpus and GRANTS a certificate of
appealability.

New Orleans, Louisiana, this 31st
_____ day of March, 2014.

________________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

13

R. Doc. 27-1 at 3.
5